A Radical Act of Queer Resistance: Falling in Love

By Stuart Gaffney and John Lewis –

Over 820,000 married same-sex couples live in the United States today, according to the latest figures from the UCLA Williams Institute. That’s over 1.6 million queer people falling in love and tying the knot. When you add the nearly 300,000 children being raised by married same-sex couples today, along with countless parents, grandparents, grown children, and other loved ones, that means many millions of people are directly touched by marriage equality. In addition, countless LGBTIQ+ people may wish to marry someday or simply take pride in the fact that they have the same fundamental right to marry under the U.S. Constitution that everyone else does.

Not surprisingly, fear and apprehension arose with the news that Kim Davis, the outlier former Rowan County Kentucky clerk who, 10 years ago, refused to marry same-sex couples after the U.S. Supreme Court made marriage equality the law of the land, had asked the Supreme Court to hear her last-ditch appeal in a lawsuit she has been fighting for over a decade. Davis’ Supreme Court petition focuses on her claim that her conservative Christian religious beliefs should have enabled her to disregard the Obergefell nationwide marriage equality decision when it was issued and to refuse to permit her county to marry same-sex couples. She also requested that the Court overturn the landmark decision itself.

The vast majority of legal observers believe it highly unlikely that the U.S. Supreme Court will take her case. One reason is that, in the course of the litigation, Davis has already lost three times at the Sixth Circuit Federal Court of Appeal, and, five years ago, the Supreme Court rejected a request for it to hear similar issues in her case. Although Clarence Thomas, joined by Samuel Alito, issued a statement misrepresenting and maligning the Obergefell decision, even they acknowledged that her petition did “not cleanly present” the issues they believed the court should consider.

In that appeal, the Sixth Circuit held that for “a reasonable official, Obergefell left no uncertainty” about its force and effect. Even Judge John Bush, a Trump nominee to the Sixth Circuit, concurred, stating that, even under the most lenient standard of review, Supreme Court precedent “clearly established that Davis could not deny marriage licenses to [same-sex couples] based on their sexual orientation.” 

Bush squarely rejected Davis’ religious claims, stating that “it was not permissible for Davis to take the law into her own hands” and “self-create an accommodation.” Significantly, Davis in face of the Obergefell decision did not seek a personal exception just for herself; she refused to allow any deputy clerk in the county to issue a marriage license to any couple as a means to ensure that no same-sex couple would marry in Rowan County.

In the 2025 Sixth Circuit decision, which Davis now asks the Supreme Court to review, the federal appeals court identified “dire” implications if Davis’ argument were accepted. State or local officials could abridge any constitutional right of anyone as they saw fit according to their own personal religious beliefs or conscience. “A county clerk who finds interracial marriage sinful could refuse to issue licenses to interracial couples. An election official who believes women should not vote could refuse to count ballots cast by females. A zoning official personally opposed to Christianity could refuse to permit the construction of a church.”  Furthermore, if every county clerk in a given state were free to choose whether or not their county would marry same-sex couples, county clerks collectively could ban same-sex marriage statewide in blatant violation of LGBTIQ+ people’s constitutional rights, guaranteed by Obergefell.

Another Sixth Circuit Trump nominee, Judge Chad Readler, concurred with that decision, stating that “right or wrong, the fact remains that we all must follow Obergefell, the law of the land. That includes Kim Davis, in her role as Rowan County Clerk.” Describing Davis to have acted “in the most extreme way,” Readler articulated a clear legal principle: “a government employee, acting in the scope of that employment, does not have a unilateral free exercise right to use an arm of the state to infringe on a clearly established equal protection right of the public.”

As we’ve written before, most legal observers believe that there are not five votes on the Supreme Court to overturn Obergefell. In addition, Congress enacted the bipartisan 2022 federal Respect for Marriage Act to protect nationwide marriage equality in the event Obergefell were undermined, although that legislation would undoubtedly be the subject of litigation itself. We are not naïve about the effects of the Supreme Court’s deeply flawed anti-transgender decision earlier this year or their expansion of the ability of individuals and religious organizations to claim religious exemptions from state anti-discrimination laws.

Nevertheless, public support for marriage equality remains very high, with a 2025 Gallup Poll showing a “steady 68%” in favor, down slightly from a peak 71% in 2022 and 2023, but well within the sampling error of 4 to 5%. Majorities in all 50 states, including those in the most conservative parts of the country, support marriage equality, according to the Public Religion Research Institute (PRRI) 2024 survey. Marriage equality has been carried out smoothly nationwide now for over a decade, with essentially no county clerks’ offices interfering with LGBTIQ+ couples getting married.

And one of the 1.6 million married LGBTIQ+ people is Donald Trump’s hand-picked Treasury Secretary Scott Bessent, one of the most important members of the Cabinet and fifth in line to the presidency. Bessent and his husband John Freeman married in 2011 and are raising two children, both born through surrogacy.

Regardless of one’s opinion of Bessent’s performance as Treasury Secretary or the Trump administration itself, Bessent’s ascendancy to become the highest-ranking openly LGBTIQ+ government official in American history speaks to the depth and breadth of the nation’s acceptance and embrace of marriage equality. And Bessent’s marriage underscores the vital importance of Obergefell; the Treasury Secretary’s marriage would not have been recognized in his own home state of South Carolina, but for the landmark decision.

As many of us endeavor to do all we can to protect and even expand LGBTIQ+ rights during these challenging times, it can sometimes feel difficult to find effective means of resistance. Our Chinese activist friends tell us that, in the face of the concerted crackdown on LGBTIQ+ rights there, the one thing the government cannot do is stop us from coming out. When it comes to marriage equality in the U.S., one thing no one can stop us from doing is simply falling in love, a continuing radical—and joyful—act of queer resistance.

John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.

6/26 and Beyond
Published on August 28, 2025